Petition for Amicus Curiae Status in Case No. ARB/05/22

PETITION FOR AMICUS CURIAE STATUSIN CASE NO. ARB/05/22 BEFORE THEINTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENTDISPUTESBETWEENBIWATER GAUFF (TANZANIA) LIMITEDANDUNITED REPUBLIC OF TANZANIAPetitioners:The Lawyers' Environmental Action Team (LEAT)The Legal and Human Rights Centre (LHRC)The Tanzania Gender Networking Programme (TGNP)The Center for International Environmental Law (CIEL)The International Institute for Sustainable Development (IISD)November 27, 2006Petitioners Represented by:Nathalie Bernasconi-OsterwalderCenter for International Environmental LawManaging Attorney15 rue des Savoises1205 Geneva, SwitzerlandTel: +41-22-789-0500Fax: + 41-22-789-0739Email: nbernasconi@ciel.orgHelen Kijo-BisimbaLegal and Human Rights CentreJustice Lugakingira House, Kijitonyama AreaP.O Box 75254Dar es Salaam,TanzaniaTel: +255-2773038/48;Fax: +255-2773037Email: lhrc@humanrights.or.tzHoward MannSenior International Law AdvisorInternational Institute for SustainableDevelopment424 Hamilton Ave. SouthOttawa, OntarioCanada K1Y 1E3Tel: +1-613-729-0621Fax: +1-613-729-0306Email: h.mann@sympatico.caRugemeleza NshalaLawyers Environmental Action Team (LEAT)Senior Attorney52 Winchester AvenueNew Haven, CT 06511Tel:+203-745-4992Email: rugemeleza@yahoo.com

2PETITION FOR AMICUS CURIAE STATUSIN CASE NO. ARB/05/22 BEFORE THEINTERNATIONAL CENTRE FOR SETTLEMENT OF INVESTMENT DISPUTESBETWEENBIWATER GAUFF (TANZANIA) LIMITEDANDUNITED REPUBLIC OF TANZANIACONTENTS OF PETITION1. ORDERS BEING SOUGHT2. PROCEDURE FOLLOWED IN THIS PETITION3. DESCRIPTION OF PETITIONERS4. REASONS FOR PETITION5. JURISDICTION TO ACCEPT AMICUS BRIEFS6. THE TEST TO APPLY IN THIS INSTANCE7. ACCESS TO THE KEY ARBITRAL DOCUMENTS8. ACCESS TO THE ORAL HEARINGS9. SUMMARY OF PETITION AND ORDERS SOUGHT1. ORDERS BEING SOUGHTThe Petitioners are three Tanzanian-based legal non-governmental organizations (NGOs)and two international NGOs. Acting collectively, they are seeking the following orders of theTribunal in the present arbitration between Biwater Gauff (Tanzania) Limited v. United Republicof Tanzania, Case No. ARB/05/22 before the International Centre for Settlement of InvestmentDisputes:o Status as amicus curiae in the present arbitration;o Access to the key arbitration documents; ando Permission to attend the oral hearings when they take place, and to reply to anyspecific questions of the Tribunal on the written submissions.2. PROCEDURE FOLLOWED IN THIS PETITIONAs will be discussed in more detail below, this petition is made pursuant to Rule 37(2) of therecently amended Rules of Procedure for Arbitration Proceedings (Arbitration Rules) of theInternational Centre for the Settlement of Investment Disputes. It is common ground that theseRules apply to the present arbitration. As will be addressed below, Rule 37(2) provides theauthority for this Tribunal to accept amicus curiae submissions. It sets out some tests for thispurpose that potential amici should address. However, no specific procedure for applying foramicus curiae status is set out, and no preset forms are provided for this purpose. Moreover, asthis is the first instance Petitioners are aware of where Rule 37(2) is being invoked, there are noprevious decisions applying its terms to guide the Petitioners.

3Consequently, the Petitioners have considered the scope and content of Rule 37(2), as well as thetwo decisions under the previous ICSID Arbitration Rules relating to acceptance of amicus curiaesubmissions. 1 These two decisions are by tribunals with identical membership and set outidentical procedures for this purpose. They seek from Petitioners for amicus status the following:a. The identity and background of the petitioner, the nature of its membership if it is anorganization, and the nature of its relationships, if any, to the parties in the dispute.b. The nature of the petitioners’ interest in the case.c. Whether the petitioner has received financial or other material support from any ofthe parties or from any person connected with the parties in this case.d. The reasons why the tribunal should accept the petitioner’s amicus curiae brief. 2Using this as a guideline, this Petition sets out in Section 3 the elements referred to in paragraphs(a) and (c) above. Section 4 then addresses the issues raised in paragraph (b). The remainingsections address the legal and procedural reasons that answer the question: Why should thetribunal accept the present Petition?3. DESCRIPTION OF THE PETITIONERSThe Lawyers' Environmental Action Team (LEAT) is the first and the premier public interestenvironmental law organization in Tanzania. It was established in 1994 in Dar es Salaam,Tanzania, and is incorporated under the Companies Ordinance Cap 212 as a company limited byguarantee. Its mission is to ensure sound natural resource management and environmentalprotection in Tanzania, thereby ensuring that the constitutional and environmental rights of theTanzanian people are secured and realized by all. LEAT carries out policy research, advocacy,and selected public interest litigation. Its membership is widely open to people who aim to furtherenvironmental protection in Tanzania, to advance the culture of sound natural resourcesmanagement and democratic governance. Its membership is mainly composed of lawyers fromthe private and not-for-profit sectors.LEAT is an independent organization which is not subject to direction or control by any otherorganization, but is open to partner with any public interest organization in and outside thecountry in furtherance of its own mission and objectives. While LEAT seeks to work with thegovernment of Tanzania or other governmental units within Tanzania on environmental andnatural resource management issues, it is not under or subject to control by any governmentagency.LEAT’S Public Interest Litigation Program seeks, on the one hand, to provide legal services tomembers of the public in Tanzania facing environmental degradation and human rightsviolations, and, on the other hand, to challenge infringement of people’s rights, and the country’slaws and constitution. For example, in the case of LHRC, National Organizations for Legal Aid(NOLA) and LEAT v. Attorney General 3 LEAT and LHRC successfully argued before the HighCourt of Tanzania that the law allowing political candidates to offer gifts and other incentives tothe electorate while canvassing votes was unconstitutional. LEAT has also been in the forefront1 Aguas Argentinas et al. v. Argentina, Order in response to a Petition for Transparency and Participation asAmicus Curiae, ICSID Case No. ARB/03/19 (19 May 2005); Aguas Provinciales de Santa Fe et al. v.Argentina, Order in Response to a Petition for Participation as Amicus Curiae, ICSID Case No. ARB/03/17(17 March 2006).2 Aguas Argentinas, ibid, para. 25; Aguas Provinciales de Santa Fe, ibid, para. 24.3 High Court of Tanzania at Dar es Salaam Misc. Civil Cause No 77 of 2005 (unreported).

4of fundamental reforms of various laws in the country, including the enactment of major newenvironmental legislation in 2004.LEAT is financed by The Ford Foundation, Oxfam Novib (NL) and Blacksmith Institute (USA).Tundu Lissu is LEAT’s Acting Executive Director and an Attorney at LEAT’s headquarters inDar es Salaam Tanzania. Rugemeleza Nshala, acting as co-counsel for the Petitioners in thepresent case, is the Senior Advocate at LEAT, currently based in New Haven, Connecticut. Theyboth have detailed knowledge of, and experience with, Tanzanian environmental laws and naturalresources management laws. In addition, both have in-depth knowledge on trade and investmentlaws and have closely followed international trade and investment cases.Further information on LEAT’s activities and structure can be found at www.leat.or.tz.The Legal and Human Rights Centre (LHRC) is registered in Tanzania as a private, nongovernmental,non-partisan and non-profit making organization. It has been an autonomous andindependent entity since its registration in September 1995. The Legal and Human Rights Centrewas established due to the realization that the majority of the people are unaware of their rights,and most importantly for the indigent who has no means to pursue his or her rights in court forwant of legal representation.The Centre was created to contribute to the process of democratization in Tanzania and strives topromote, reinforce and safeguard human rights and democracy; promote respect for andobservance of the rule of law and due process; promote consumer protection; and create networkswith public interest and human rights organization, non governmental organizations, universities,relevant research institutions, religious association and legal associations. It provides consultancyservices to Government and Non-Governmental Organizations within the spirit of its objectives,and acts as a media resource on the issues within its mandate. LHRC also provides legal aid andlegal and civic education to the members of the public, and plays a watchdog role in the arena ofhuman rights and issues of national concern.It runs radio and television programs on human rights, environmental protection, sound economicmanagement, and social welfare. It also collaborates with other public interest organizations tolitigate on behalf of the public on matters of national importance and the protection of rule of law,legality and the country’s constitution. As mentioned above, in 2004, LHRC in collaboration withLEAT and NOLA successfully filed a constitutional petition against the government of theUnited Republic of Tanzania against the law that allowed political candidates to give gifts andother incentives while canvassing for votes. LHRC has also successfully represented SerengetiDistrict residents that were forcefully evicted by the government of Tanzania from their landswithout compensation before the Tanzania Human Rights Commission.LHRC is not a membership based organization, but an independent non-governmentalorganization and is financed by the Ford Foundation, the governments of Sweden, Finland andNorway, as well as governmental and non-governmental organizations, such as Oxfam Novib(NL) and Equality Now (USA).Helen Kijo-Bisimba is LHRC’s Executive Director at its main office in Dar es Salaam Tanzaniaand a lawyer with vast experience on human rights issues. She will act as co-counsel for thePetitioners in the present instance.More information on LHRC can be found at www.humanrights.or.tz.

5The Tanzania Gender Networking Programme (TGNP), established in 1993, is a Tanzaniannon-governmental organization (NGO) working in the civil society sector, focusing on thepractical promotion and application of gender equality and equity objectives through policyadvocacy and mainstreaming of gender and pro-poor perspectives at all levels in Tanzaniansociety, including the public and governmental sectors. In particular, TGTN works on issuesrelating to access to water, especially for the poor and women. The organization strives toenhance the mainstreaming of gender at all levels of society from grassroots communities to thehighest levels of national policy making and legislation.TGNP’s overall vision is a final responsibility of its members who have an Annual GeneralMeeting (AGM) every year. Day to day running of the organization is directed by a Board whosesecretary is the Executive Director of TGNP, as Chief Executive of the organization responsiblefor the entire staff of TGNP. TGNP houses the Secretariat of FemAct, a strong Feminist Activistadvocacy coalition of more than 50 Tanzanian NGOs.TGNP is financed greatly by its member contributions in terms of annual membership fees,volunteerism and backstopping. Recent external donations have come from charities, foundationsand donors, including HIVOS/EU, CORDAID, SIDA, AIDOS, UNIFEM and Misereor, theUniversalist Unitarian Service Committee (UUSC), Women for Water (USA) the and Women forWater Secretariat in the Netherlands.More information on TGNP can be found at www.tgnp.org.The Center for International Environmental Law (CIEL) is a nonprofit 501(c)3 organizationunder the laws of the United States of America and the regulations of the US Internal RevenueService and incorporated as such in Washington, District of Columbia, United States of America.CIEL has offices in Washington, DC and Geneva working to provide legal support to persons andcivil society organizations around the world.CIEL is not a membership based organization, but an independent non-governmentalorganization. CIEL’s mission is to use international law, institutions, and processes to protect theenvironment, human health and human rights, seeking to create a just and sustainable world.Founded in 1989, CIEL plays a key leadership role in establishing a firm foundation of legalanalysis to strengthen progressive efforts by civil society. CIEL provides a wide range ofservices to clients and partners, including legal counsel, analysis, policy research, advocacy,education, training, and capacity building. The primary focus of this work is with developingcountry governments and civil society groups. CIEL staff are well-trained in international,common and civil law systems, come from five continents, are of different cultural and religiousbackgrounds, and have broad legal perspectives due, inter alia, to their diverse backgrounds andtraining. Most have international law experience working with their home governments as well.CIEL's Trade and Sustainable Development Program seeks to reform the global framework ofeconomic law, in order to promote human development and a healthy environment. CIEL hasbeen engaged in international trade and investment law issues since the early 1990s, including forinstance, participating in the first investor-state arbitration to allow amicus submissions,Methanex Corp. v. United States as well as in the Agua Argentinas v. Argentina case. CIEL alsoprompted the WTO Appellate Body to recognize its authority to consider amicus curiae briefsfrom civil society in the landmark Shrimp/Turtle case.

6CIEL and its staff have published a number of papers and books on international trade law andinternational investment law, including most recently, Fresh Water and International EconomicLaw (Oxford University Press, 2005), and Trade and Environment: A Guide to WTOJurisprudence (Earthscan, 2005).Funding for CIEL’s Trade & Sustainable Program is provided by foundations, including the JohnD. and Catherine T. MacArthur Foundation, the Charles Stewart Mott Foundation, theRockefeller Foundation, and the Ford Foundation, as well as governments and intergovernmentaland non-governmental organizations. CIEL retains full control over the content of its work andprojects, regardless of funding source.Nathalie Bernasconi-Osterwalder is the Managing Attorney of CIEL’s Geneva office. She will actas co-counsel for the Petitioners. She is an experienced international lawyer and has previouslybeen involved in amicus submissions in investment and trade law cases.More information on CIEL can be found at www.ciel.org.The International Institute for Sustainable Development (IISD) is a Canadian-basedinternational non-governmental organization originally established by an Act of the Parliament ofCanada. The mandate of the IISD is to foster local, regional and international policies andpractices in support of the achievement of sustainable development. IISD receives some corefunding from the governments of Canada and Manitoba, as well as core and project funding froma wide range of governmental and non-governmental funding sources. IISD retains full controlover the content of its work and projects, regardless of funding source.Trade and investment agreements are one of several areas of work relating to sustainabledevelopment that IISD undertakes. IISD has been actively engaged in international trade lawissues since 1991, and international investment law issues since 1998. IISD’s primary concernswith the latter have been with regard to the relationship of international investment agreements tosustainable development. This includes the functioning and role of the dispute settlement systems,and the systemic legal implications of the individual and cumulative decisions of tribunals from asustainable development perspective.IISD initiated the first amicus curiae petition in the Methanex Corp. v. United States investorstatearbitration under NAFTA, and its amicus submissions in that case were expressly cited withapproval by the tribunal. 4 IISD is currently engaged in advising developing countries oninternational investment law negotiations, a multi-partner process for training on internationalinvestment law, as well as working on a next generation of international investment agreements.IISD staff have several dozen publications in this field, all of which are available athttp://www.iisd.org/publications/publication_list.aspx?themeid=7. IISD is also the publisher ofthe Investment Treaty News bulletin. 54 Methanex Corporation v. United States of America, Final Award of the Tribunal on Jurisdiction andMerits, 3 August 2005, (hereinafter, Final Award) Part IV, Chapter B, page 13, para. 27.http://naftaclaims.com/Disputes/USA/Methanex/Methanex_Final_Award.pdf5 Investment Treaty News is a publication of IISD. Its editorial functions are kept separate from the otherwork of IISD in order to ensure neutral and objective reporting. It has previously published reports on thepresent arbitration. This was noted in Procedural Order No. 3 as part of the evidence produced by Biwatershowing the risk of publication of information on the case. Investment Treaty News has, indeed, publishedsuch stories and will undoubtedly continue to, as will other journals and news bulletins in the field, as newdevelopments occur. Indeed, it would be rather unusual if there were no such reporting on a majorinfrastructure investment in the water sector that has gone awry and is now subject to an international

7IISD’s funding for this work is derived from a project on capacity provision and capacity buildingfor developing countries in relation to international investment law. The project is funded by theRockefeller Brothers Foundation, and the development agencies of the governments of Swedenand Denmark, in particular.Howard Mann is the Senior International Law Advisor to IISD. A practicing international lawyerfor nearly twenty years, Dr. Mann was counsel to IISD in the Methanex arbitration, has acted ascounsel in NAFTA-based litigation before Canada’s Federal Court of Appeal, and will also act asco-counsel for the Petitioners in the present instance.More information on IISD can be found at www.iisd.org.Individually and collectively, the Petitioners hereby attest and affirm that they have norelationship, direct or indirect, with any party or any third party to this dispute. ThePetitioners have not received any assistance, financial or otherwise, from a party or a third partyto this dispute in the preparation of this Petition for Amicus Status. They will not receive any suchassistance in the preparation of their amicus submissions if this petition is accepted by theTribunal.4. REASONS FOR THE PETITIONThis arbitration raises a number of issues of vital concern to the local community in Tanzania,and a wide range of potential issues of concern to developing countries (and indeed all countries)that have privatized, or are contemplating a possible privatization of, water or other infrastructureservices. The arbitration also raises issues from a broader sustainable development perspectiveand is potentially of relevance for the entire international community.In the UN Millennium Declaration, the international community committed itself to halve, by theyear 2015, the proportion of people who are unable to reach or to afford safe drinking water. Theprivatization at issue in the present arbitration was conceived to work towards this goal. It hasbeen described as “one of the most ambitious in Africa and was intended to be a model for howthe world's poorest communities could be lifted out of poverty and countries could meet theirmillennium development goal targets.” 6This was a critical project, watched by a wide range of observers. In few sectors is therelationship of service delivery to basic human rights and needs more salient than in the watersector. In addition, the management of water services relates closely to environmentalmanagement of water resources. Indeed, this Tribunal seems to implicitly recognize themultifaceted importance of this arbitration by explicitly noting “the public nature of this disputeand the range of interests that are potentially affected.” 7arbitration. We note the Tribunal has ensured that general discussion of the case be permitted under itsOrder as well. At no time has any allegation of impropriety, disruption or distortion been made towards thereporting in ITN on the Biwater case.6 Flagship water privatisation fails in Tanzania, UK firm's contract cancelled amid row over supply, byJohn Vidal in Dar es Salaam, Wednesday May 25, 2005, The Guardian athttp://politics.guardian.co.uk/development/story/0,15709,1491602,00.html.7 Procedural Order No. 3, paragraph 147.

8This approach and understanding of the issues has jurisprudential support. In Aguas Argentinas v.Argentina, a dispute also involving water distribution and sewage services, the tribunal stated inresponse to a petition for amicus status:“ … The factor that gives this case particular public interest is that the investmentdispute centers around water distribution and sewage systems of a largemetropolitan area, the city of Buenos Aires and surrounding municipalities. Thosesystems provide basic public services to millions of people and as a result mayraise a variety of complex public and international law questions, including humanrights considerations. Any decision rendered in this case, whether in favor of theClaimants or the Respondent, has the potential to affect the operation of thosesystems and thereby the public they serve”. 8Like the Aguas Argentinas case, the present dispute involves a water services agreement. Theabove statement of the Aguas Argentinas tribunal stresses what is also true for the present dispute,namely that the arbitration process goes far beyond merely resolving commercial or privateconflicts, but rather has a substantial influence on the population’s ability to enjoy basic humanrights. This aspect of the case means that the process should be transparent and permit citizens’participation.Given the real and legitimate public concerns present in this case, 9 it is entirely appropriate thatthe Tribunal hear from the leading civil society groups in Tanzania on these issues. Thecombination of natural resource and human rights issues is precisely what the TanzanianPetitioners focus on in their day-to-day work. As locally based NGOs, they have the leadingexpertise to identify and discuss the various interests involved in this dispute from a civil societyperspective. Indeed, this is what the Tanzanian NGOs have been doing since they wereestablished. These Petitioners bring knowledge of local laws and circumstances, as well as thelocal context in which decisions on water services have been made.It is also appropriate that the Tribunal hear from Petitioners concerned with the implications ofthis dispute beyond the borders of Tanzania. This case potentially addresses Tanzania’s capacityto regulate and guarantee its citizens the supply of essential public services when they seek toenter partnerships with investors. But it is also potentially relevant for other developing countriesthat are currently facing massive infrastructure deficits. How international investmentagreements, which by and large share similar structures and substantive content, can be applied togovern foreign investments in major infrastructure projects is of critical concern for thesustainable development of these countries.In addition, the legal responsibilities of foreign investors in such projects are becoming anincreasingly important issue in the context of arbitrations concerning such projects. What is thenature of the due diligence to be exercised by such investors before an investment is made, whatare the consequences for failing to meet the appropriate standards of conduct, and how could8 Paragraph 19 of Aguas Argentinas et al. v. Argentina, Order in response to a Petition for Transparencyand Participation as Amicus Curiae, ICSID Case No. ARB/03/19 (19 May 2005).9 See, for instance: Backlash over water Private Deals, by John Vidal, May 25, 2005, The Guardian,http://www.commondreams.org/headlines05/0525-07.html;.Govt Dumps City Water, by Bilal Abdul-Azizof the Guardian, 14 May 2005, available at http://216.69.164.44/ipp/guardian/2005/05/14/39435.html; orAction Aid International, Turning Off the Taps Donor Conditionality and water privatisation in Dar esSalaam, Tanzania, available at http://www.actionaid.org.uk/_content/documents/TurningofftheTAps.pdf.

10procedure set out in such amended rules will apply to the question of amicus curiae.” (Minutes ofthe First Session, Para. 20.)Petitioners note that this is the first time, to their knowledge, that the new Rule 37(2) on amicussubmissions, which lays out the groundwork for an orderly process for considering theparticipation of amici, is being considered by a Tribunal. For this reason, we believe it is useful tomake some remarks on the new rule’s role, interpretation and application.Firstly, we note that the jurisdiction of the Tribunal to accept amicus submissions is now beyonddoubt in these proceedings. Since 10 April 2006, the amended ICSID Arbitration Rules explicitlygive tribunals the power to allow for submissions of non-disputing parties to the tribunal. Rule37(2) of the new ICSID Arbitration Rules provides, inter alia:Submissions of Non-disputing parties to the TribunalAfter consulting both parties, the Tribunal may allow a person or entity that is nota party to the dispute (in this Rule called the “nondisputing party”) to file a writtensubmission with the Tribunal regarding a matter within the scope of the dispute.This Rule is now expressly consistent with the practice that had emerged in previous arbitrations.This is so because the rule makes explicit not only that the Tribunal has the jurisdiction to acceptamicus curiae submissions, but also that it may do so without the approval of one or both of thearbitrating parties. 12 Rule 37(2) requires a tribunal to consult with the parties, but does not ascribeto either or both parties together a veto over a decision by a tribunal to exercise its discretion as itsees fit for the best result in the matter before it. This is consistent with the very notion of anamicus curiae, that it be a friend of the court, and serve the court’s purpose of a fully informeddecision.The inclusion of Rule 37(2) in the amended ICSID Rules must also, it is submitted, be understoodin another light. By clarifying the jurisdiction of ICSID Tribunals to accept such submissions, theRules also establish, by sound logic and necessary implication, the right of third parties to applyfor such status. This third party right does not extend to the right to have such submissionsaccepted by the tribunal, or for them to form a basis for the final award if they are accepted. But itdoes establish a right to make a full presentation to a tribunal to be able to meet the tests foracceptance as an amicus curiae that are set out in the balance of Rule 37(2). It is to this issue thatwe now turn.6. THE TEST TO APPLY IN THIS INSTANCERule 37(2) of the new ICSID Rules sets out the test for the Tribunal to apply in exercising itsdiscretion to accept or not accept any particular Petition for amicus curiae status. The full text ofRule 37(2) reads:After consulting both parties, the Tribunal may allow a person or entity that is nota party to the dispute (in this Rule called the “nondisputing party”) to file a writtensubmission with the Tribunal regarding a matter within the scope of the dispute. In12 The first decision to allow amicus participation in the Methanex Corp. v. United States arbitration wastaken, for example, against the express wishes of the complainant corporation. Methanex Corporation v.United States of America, Decision of the Tribunal on Petitions From Third Persons to Intervene as AmiciCuriae, January 15, 2001.http://naftaclaims.com/Disputes/USA/Methanex/MethanexDecisionReAuthorityAmicus.pdf The sameapplies to the first two decisions on amicus curiae under the previous ICSID Rules, See Aguas Argentinasand Aguas Provinciales de Santa Fe, op.cit, note 1.

12new ICSID Rule, it falls to this Tribunal to sort out, as necessary, the kinds of difficulties orlacunae that the initial uses of the new Rules might highlight in practice. In this case, the questionarises of how to square the issuance of a broad confidentiality order with the exercise of the rightof non-parties to apply for status as an amicus curiae in a manner that complies with the letter andspirit of the new Rules that apply to this arbitration.It will not surprise the Tribunal that the Petitioners do not believe the confidentiality order isappropriate in a case of such broad public importance, or, indeed, in investor-state casesgenerally. At the same time, the Petitioners come to this process as it is and have no status toappeal the Order already made. Rather, the Petitioners herein suggest an appropriate way forwardto allow their rights to make a fulsome Petition for amicus status to be realized, in respect of theArbitral Rules controlling this arbitration. Each element of the test noted above may beconsidered separately in this regard.(a) the non-disputing party submission would assist the Tribunal in the determination of a factualor legal issue related to the proceeding by bringing a perspective, particular knowledge orinsight that is different from that of the disputing partiesThe Petitioners fully appreciate the need to ensure that their submissions must assist theTribunal in determining matters properly before it. The Petitioners thus undertakeherewith to ensure that the matters they shall address will fall fully within the legal issuesthe tribunal must address for a proper legal determination in this case.However, at this time, it is impossible to demonstrate conclusively that the perspective ofthe Petitioners on any specific issue will differ from one of the parties. What has alreadybeen demonstrated, it is submitted, is that the starting perspective of the Petitioners, asNGOs with specialized interests and expertise in human rights, environmental and goodgovernance issues locally in Tanzania, and in the multiple critical inter-relationshipsbetween international investment law and sustainable development at the internationallevel, will be different than the initial interests, expertise and perspectives of the twocontending parties. One can and should anticipate that this will lead to different legalarguments being made. Where the differences in argument are insignificant, thePetitioners undertake to exercise their discretion and refrain from making submissions onsuch issues.(b) the non-disputing party submission would address a matter within the scope of thedisputePetitioners understand this to mean matters in the more limited sense of a factualor legal issue that is within the scope of the dispute, not a political or broadlystatedpolicy issue. All the Petitioners can do at this time is again undertake toensure that this will be so. Petitioners and their counsel are all seasoned legalpractitioners with considerable experience inside legal processes at the nationaland international levels. They respect this as a forum for legal issues within thescope of the dispute.(c) the non-disputing party has a significant interest in the proceedingPetitioners have relied upon their general knowledge of the case and the legal issues it islikely to raise, to demonstrate why the proceeding has a significant interest to them. In

13this regard, the public interest involved in the case is directly related to the sphere ofexpertise and mandate of the Petitioners. Based on what has been described above, wesubmit this test has been met.If the Tribunal is not satisfied that Petitioners have a significant interest in the proceeding or meetthe other tests, the Tribunal is requested to bear in mind that the Petitioners cannot at this time bemore explicit due to no fault or lack of diligence on their own part. In this event, the Petitionersrespectfully suggest that the Tribunal consider one of two options:1. Accepting the Petition now on the basis of the undertakings of the Petitioners set outabove and providing the Petitioners with the key legal documents in order to ensure thoseundertakings can be met and a useful submission can be made; or2. Providing Petitioners with the key legal documents in order that they may be able todemonstrate to the Tribunal that the tests are fully met before the Tribunal rules on thepetition.To ensure that either option will be effective, the Tribunal could issue a new procedural ordermodifying the current restrictions on access to the arbitral documents under Procedural Order No.3; or the Tribunal could simply order the release of certain documents, with or without specifiedconditions, as envisaged in Procedural Order No. 3.Given that Rule 37(2) does not exhaustively list the factors to be considered by the Tribunal indeciding amicus status, the Petitioners wish to note two other factors that might be relevant to itsdecision on this Petition. 14 The first arises directly from the focus of the Tribunal in ProceduralOrder No. 3 on the proper functioning of the arbitral process. Petitioners wish to note in thisregard that there is a history of practice by amici that is growing in investor-state arbitrations. Inthe first such case, Methanex Corp v. United States, the final award of the Tribunal recorded their“appreciation of the scholarship and industry which counsel for the Disputing Parties, Mexico andCanada as NAFTA Parties and the amici have deployed…” 15 , and also noted the attendance of theamici at the oral hearing on the merits in that arbitration. As noted above, both CIEL and IISDappeared as amici before the Methanex Tribunal. 16It is this record of positive contribution, through what became simply a routine participation inthe Methanex proceedings that the Petitioners wish to note. As well, with the number of amicuspetitions now increasing, and with a growing experience, there is no recorded instance of theabuse of this process by any petitioner or accepted amicus curiae. There is no basis to assume theapplication of Rule 37(2) will lead to a disruption of the tribunal’s process. Indeed, to make suchan assumption and use it as a basis to deny amicus standing or access to the requisite documentsto participate in an informed manner would render the amendment to the Rules allowing amicusparticipation inutile. Such a result would fit neither the letter nor spirit of the amendment. Wenote again in this respect the repeated assertions of this Tribunal in Procedural Order No. 3 that14 We note that Rule 37(2) states the Tribunal shall consider, “among other things”, the factors set outexpressly in that Rule. Other factors may thus also be relevant. It may be noted that the tribunal in theAguas Argentinas and Aguas Provinciales de Santa Fe decisions, supra, n.1, para. 27 and 26 respectively(which predate the current Rules), listed several factors to consider: “…all the information in the petition,the views of the Claimants and Respondent; the extra burden which the acceptance of amicis curiae briefsmay place on the parties, the Tribunal and the proceedings; and the degree to which the proposed amicuscuriae brief is likely to assist the tribunal in arriving at its decision.”15 Methanex Final Award, note 2 above, at p. Part I-preface-page 5.16 The Tribunal also, later on, expressly cited with approval the written submissions of IISD, see Footnote4, above, and accompanying text.

14one of the overall purposes of the amendment to the Rules of Arbitration was to promote moretransparency in the investor-state process, not less than existed under the general mandate of thetribunal to manage its own process, the basis upon which Tribunals have previously allowedamicus participation.In addition, Rule 37(2) ascribes to the Tribunal the responsibility to manage the process so as toensure no disruption or procedural unfairness arises. In the absence of clear evidence of a highlikelihood of disruption, it is submitted that this factor, which motivated the Tribunal inProcedural Order No. 3, at least in large part, can only play a minimal role in setting themodalities for such participation in any appraisal under Rule 37(2).Finally, the Petitioners also note the importance of public access to such arbitrations from adifferent perspective; the credibility of the arbitration process in the eyes of the public. As notedin the Methanex Corp v. United States decision on jurisdiction to accept amicus submissions,49. There is undoubtedly public interest in this arbitration. The substantive issues extend farbeyond those raised by the usual transnational arbitration between commercial parties.This is not merely because one of the Disputing Parties is a State… The public interest inthis arbitration arises from its subject-matter, as powerfully suggested in the Petitions.There is also a broader argument, as suggested by the Respondent and Canada: theChapter 11 arbitral process could benefit from being perceived as more open ortransparent; or conversely be harmed if seen as unduly secretive. In this regard, thetribunal’s willingness to receive amicus submissions might support the process ingeneral and this arbitration in particular, whereas a blanket refusal could do positiveharm. 17The exact same argument is found in the only two decisions on amicus participation under theprevious ICSID Rules:The acceptance of amicus submissions would have the additional desirableconsequence of increasing the transparency of investor-state arbitration. Publicacceptance of the legitimacy of international arbitral processes, particularly whenthey involve states and matters of public interest, is strengthened by increasedopenness and increased knowledge as to how the process functions…. Through theparticipation of appropriate representatives of civil society in appropriate cases,the public will gain increased understanding of ICSID processes. 18This perspective from an investor-state tribunal is particularly important in light of the potentialimpacts of the confidentiality order on public access to documents in the case as it evolves. Whiletribunals and the international arbitration bar often consider such issues from the perspective ofthe professional functioning of the individual case, as appears in the decision in Procedural OrderNo. 3 of this Tribunal, the public perception can be one of a system unfolding in a secretenvironment that is anathema in a democratic context. Allowing leading local and internationalNGOs amicus curiae status would help reduce the anxiety that accompanies such concerns andimprove the public credibility of the process.17 Methanex Corporation v. United States of America, Decision of the Tribunal on Petitions From ThirdPersons to Intervene as Amici Curiae, January 15, 2001.http://naftaclaims.com/Disputes/USA/Methanex/MethanexDecisionReAuthorityAmicus.pdf18 Aguas Argentinas, n. 1, para 22; Aguas Provinciales de Santa Fe, no. 1, para 21.

157. ACCESS TO THE KEY ARBITRAL DOCUMENTSPursuant to Procedural Order No. 3 on confidentiality, Petitioners submit that the Tribunal in thepresent case has retained the full authority and discretion to allow for access to documents to nondisputingparties. In order to make an informed decision on whether to apply for participation asamici, we ask that the Tribunal exercise its discretion and provide access to:• the initial notice of arbitration and statement of defense, if any was prepared;• the decisions, orders and directions of the Tribunal not already in the public domain, ifany;• the pleadings and written memorials of the arbitrating parties, and• relevant witness statements and transcripts of any witness examinations.In Procedural Order No. 3, the Tribunal explicitly allowed for “general discussion about the case”(para. 149-150). A “general discussion”, however, is insufficient to provide a clear understandingabout the specific legal issues this dispute raises, or the facts to which they must be applied so asto enable an informed and useful amicus brief to be prepared.Thus, the Petitioners turn to the Tribunal’s expressly retained power to decide in favor ofdisclosure of the above types of arbitral documents. This is found in at least two relevant places inProcedural Order No. 3:ooAt para. 158, the Tribunal states that “this category of documents should berestricted, pending conclusion of the proceedings (or agreement between the parties,or further order by the Tribunal)”. [emphasis added.]At para. 162, the Tribunal expressly maintains for itself the continued review of theapplication of its Order.In order to ensure that the balance between competing interests ismaintained, the tribunal considers it appropriate to keep each category[of documents described in the Order] under continued review. To thisend, pending conclusion of these proceedings, the tribunal will act as“gate-keeper” on disclosures. Thus, if new circumstances arise, and theparties are unable to reach agreement, the parties remain at liberty toapply to vary these directions on a case-by-case basis. In the interests ofefficiency, the Tribunal expects that such applications would be madeonly in well-justified circumstances, supported by concrete explanations.While the above paragraph refers to applications for variances from the Order by the parties, inthe present circumstances the Petitioners submit that this should not be read so as to limit thebroader notion of the Tribunal acting as the gate-keeper on disclosures in the context of a Petitionfor amicus standing. This would leave the ability of potential amici to engage in the process in aneffective manner in the hands of the parties rather than in the hands of the tribunal, where thediscretion has been fully vested by Rule 37(2) of the amended Rules.In addition, nothing on the face of the Order suggests that the context of the second part of para.162 was drafted in anticipation of a Petition of the present type. Thus, in addition to reading itwithin its intended scope, it is submitted that the Tribunal may rely upon its general powers underRule 19 of the new Rules, to review its own orders in managing its proceedings, as well as the

16implied power in Rule 37(2) to ensure that amicus curiae have the opportunity to properly presenttheir petitions for said status and to make an effective contribution to the deliberations of theTribunal.Petitioners wish to note two additional factors relating to this issue. First, it has become commonpractice where arbitral documents are released to the public for confidential business informationto be redacted. A similar process can be undertaken here. Experience suggests that in most cases,this is generally easily accomplished, and in reality few redactions are necessary.Second, Petitioners submit that “the balance between competing interests”, as that phrase is usedin para. 162 of Procedural Order No. 3, must also be understood to include the interests ofpotential amici, acting properly and fully within their rights and interests pursuant to Rule 37(2)of the Rules. That this adds an unanticipated twist to what the tribunal was addressing in its Orderis clear. That does not, however, diminish the compelling need to address the impact Rule 37(2)should have on the scope or application of such an Order.8. ACCESS TO THE ORAL HEARINGSLastly, the Petitioners seek an Order from the Tribunal that the hearings be open to the public andthat amici, once accepted, be allowed to reply directly to any questions directed to them by theTribunal concerning their submissions.Rule 32(2) of the amended Arbitration Rules provides:Unless either Party objects, the Tribunal, after consultation with the Secretary-General, may allow other persons, besides the parties, their agents, counsel andadvocates, witnesses and experts during their testimony, and officers of theTribunal, to attend or observe all or part of the hearings, subject to appropriatelogistical arrangements. The Tribunal shall for such cases establish procedures forthe protection of proprietary or privileged information.This provision is notably different from the previous Rule 32(2), which stated:The Tribunal shall decide, with the consent of the parties, which other personsbesides the parties, their agents, counsel and advocates, witnesses and expertsduring their testimony, and officers of the Tribunal may attend the hearings.Principally, the revised Rule enables the Tribunal to make a decision on its own initiative to allowthird parties to attend the hearing. Such a decision is then subject to an objection, or veto, by aparty. This difference, it is submitted, is emblematic of the overall shift to promotingtransparency in investor-state arbitrations that this Tribunal has already noted in some detail in itsProcedural Order No. 3.The Petitioners, relying on the widely recognized public interest in this arbitration, thus seek anOrder of the Tribunal for open proceedings, and for the enabling of the Petitioners and Counsel toattend the hearing.In addition, Petitioners seek an Order to be allowed to respond to any questions on itssubmissions, should they be accepted by the Tribunal, at the oral hearings. Petitioners are aware

17that such a response can theoretically add some time. However, the Tribunal is master of its owntime, and can ensure that the proceedings are conducted in an orderly and timely fashion.Petitioners note that several investor-state cases have now been made open to the public, andthere has been no incident or conduct that has disrupted the proceedings in any such case.Speculation that this case might lead to such disruptive conduct would be just that, baselessspeculation. In fact, in a growing and consistent practice in similarly emotional cases, nodisruption has occurred. Petitioners undertake to present their arguments in the time and mannerdirected by the Tribunal.9. SUMMARY OF PETITION AND ORDERS SOUGHTThe Petitioners seek the following orders of the Tribunal in the present arbitration betweenBiwater Gauff (Tanzania) Limited v. United Republic of Tanzania, Case No. ARB/05/22 at theInternational Centre for Settlement of Investment Disputes:o Status as amicus curiae in the present arbitration;o Access to the key arbitration documents; ando Permission to attend the oral hearings when they take place, and to reply to anyspecific questions of the Tribunal on the written submissions.In order to avoid disturbing the orderly pace of this arbitration, and thus consistent with Rule37(2) of the new Arbitration Rules, Petitioners request access to the above-mentioned documentsas soon as possible.Respectfully submitted on behalf of:The Lawyers' Environmental Action Team (LEAT)The Legal and Human Rights Centre (LHRC)The Tanzania Gender Networking Programme (TGNP)The Center for International Environmental Law (CIEL)The International Institute for Sustainable Development (IISD)Original signed by Nathalie Bernasconi-OsterwalderCenter for International Environmental Law (CIEL)Geneva, 27 November, 2006

18CONTACTS:Center For International EnvironmentalLaw (CIEL)Nathalie Bernasconi-OsterwalderManaging Attorney15 rue des Savoises1205 Geneva, SwitzerlandTel: +41-22-789-0500Fax: + 41-22-789-0739Email: nbernasconi@ciel.orgInternational Institute for Sustainable(IISD)Howard MannSenior International Law AdvisorDevelopment424 Hamilton Ave SouthOttawa, OntarioCanada K1Y 1E3Tel: +1-613-729-0621Fax: +1-613-729-0306Email: h.mann@sympatico.caLawyers Environmental Action Team(LEAT)Tundu LissuActing Executive DirectorMazingira House, Mazingira StreetMikocheni B AreaP.O Box 12605Dar es SalaamTanzaniaTel: +255-22-2780859/2781098Fax: 255-22-2780859Email:tundulissu@leattz.orgLegal and Human Rights Centre (LHRC)Helen Kijo-BisimbaP. O. Box 75254Dar es Salaam, TanzaniaPhone numbers: +255-22 2773038, 277 3048Fax number: +255-22 2773037http://www.humanrights.or.tz/Tanzania Gender Networking Programme(TGNP)Mary Janeth RusimbiGender Resource CentreP.O. Box 8921Dar es Salaam, TanzaniaEast AfricaTel: +255-22-2443205, 2443450, 2443286Fax: +255-22-2443244http://tgnp.org